Heath Thinking About Records From a Litigation Perspective ......The Texas 2003 Congressional...

Thinking About RecordsThinking About RecordsThinking About RecordsFrom A Litigation Perspective

Thinking About RecordsFrom A Litigation Perspective

ddPresented By:

C. Robert HeathPresented By:

C. Robert HeathBickerstaff Heath Delgado Acosta LLPBickerstaff Heath Delgado Acosta LLP

Legislative Redistricting Plans A Lik l T B Ch ll d I CAre Likely To Be Challenged In Court

⋆ The executive director of the Pennsylvania

Legislative Reapportionment Commission speaks g pp p

of defending against 27 lawsuits

⋆ The 2001 Texas Legislative Redistricting Board

plan faced at least 17 lawsuits.

© Bickerstaff Heath Delgado Acosta LLP

Legislative Redistricting Plans Are Likely To Be Challenged In Courty g

⋆ It’s important to beware that what you say or write may be evidence in courtmay be evidence in court

⋆ Assume that every thing you say and every thing you write will end up in the newspaper or in court

⋆ Without regard to open records laws or discovery in⋆ Without regard to open records laws or discovery in litigation, statements made in the legislative process tend to become publictend to become public

⋆ There are few secrets in the legislature


⋆ Think about the redistricting process as a means of developing a record that will bolster theof developing a record that will bolster the defense of the bill in court

⋆ Or, if you are in the minority and are opposing the bill, that will assist in a challenge to the billthe bill, that will assist in a challenge to the bill

⋆ It’s a good idea to talk to legal counsel at the beginning of the process to learn what the critical issues are likely to be and what will help y por hurt the chances of prevailing on those issues in any court challenge


in any court challenge

The Texas 2003 Congressional Redistricting Was Among The Most Contentious In History g y

⋆ It resulted in a net gain of twelve seats for Republicans in the U.S.

Congress (six Democratic seats switched to Republican)

⋆ In the regular session 52 Democratic House members left the⋆ In the regular session 52 Democratic House members left the

state for five days to prevent the House from passing a

di t i ti bill til it l d ll iblredistricting bill until it was no longer procedurally possible

under the rules.


The Texas 2003 Congressional Redistricting Was Among The Most Contentious In History g y

⋆ In the special session, eleven Democratic senators

stayed for almost 40 days in New Mexico to prevent the

Senate from acting on redistricting.g g

⋆ When the bill was considered, both sides tried to build

a record that would support their position in court


A Good Example Of Using The Process To Build A Record Is Found In Chen v.City of Houston, y f ,

206 F3d 502 (5th Cir. 2000)

⋆ The city redrew its council districts after⋆ The city redrew its council districts after annexing 40,000 persons in a area called King oodKingwood.

⋆ Kingwood’s population was overwhelmingly g p p g yAnglo.

Th l t il di t i t d i tl⋆ The closest council district was predominantly African‐American.


A Good Example Of Using The Process To Build A Record Is Found In Chen v.City of Houston, y f ,

206 F3d 502 (5th Cir. 2000)

Th d l t d i tl⋆ The second closest was predominantly Hispanic.

⋆ If the city placed Kingwood in either of those districts it faced serious problems under both sections 2 and 5 of the Votingunder both sections 2 and 5 of the Voting Rights Act.


1995 City of Houston City Council Districts 92%AngloKingwood

KingwoodAnnex.

Population40 834B

61%Black

66%Anglo

40,834

B

B

B

58%HispanicA H

BB

IG

FI

53% i iC D

E

Hispanic


51%Anglo

Average District Size:

183,855

A Good Example Of Using The Process To Build A Record Is Found In Chen v.City of Houston,Record Is Found In Chen v.City of Houston,

206 F3d 502 (5th Cir. 2000)

⋆ The solution was to put it in a more distant p

predominantly Anglo district, although this

was almost certain to result in a suit

raising Shaw v Reno issuesraising Shaw v. Reno issues


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1998-1999 City Council Districts

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WY 14

Kingwood Annexation in Houston

⋆ The city wanted to show that Kingwood shared a community of interest with District E but not withcommunity of interest with District E but not with Districts B and I.

⋆ The council received reports comparing the districts on⋆ The council received reports comparing the districts on socio‐economic features and other factors relevant to city council issues.y

⋆ The council discussed these issues before any vote was taken.

⋆ The city used the record as the basis for its successful summary judgment motion.


Steps To Take Before Redistricting

⋆ Be briefed by legal counsel on the issues and

learn what issues courts will be considering

⋆ Learn what will help or hurt your case

⋆ Keep this in mind when preparing, considering,

d di i l i l iand discussing any legislation


The Legislative Privilege

⋆ Courts recognize a legislative privilege to protect

persons acting in a legislative capacity from

liability for actions taken in a legislative capacityliability for actions taken in a legislative capacity

and from being compelled to testify.

⋆ The doctrine is not so much to protect individual

legislators but is rather to serve the publiclegislators but is rather to serve the public

interest.



⋆ If public officials are threatened with suit they

may act with an excess of caution or make their

decisions with less than full fidelity to objectivedecisions with less than full fidelity to objective

and independent criteria. (Forrester v. White–

U.S. Supreme Court 1988)

⋆ The privilege applies to staff as well as⋆ The privilege applies to staff as well as

legislators.



⋆ The privilege applies to persons acting in a legislative capacity even though they may not be g p y g y ymembers of the Legislature—e.g., executive officials serving on a redistricting commission, g g ,courts when acting in a legislative capacity.

⋆ Legislative immunity is personal to the legislator⋆ Legislative immunity is personal to the legislator and may be waived.

⋆ If a legislator chooses to testify, he or she will be able to be deposed.


Summary

⋆ Expect that what you say or write will be public

⋆ Anticipate litigation

⋆ Be aware of what effect your comments are writings will have on your position in courtwritings will have on your position in court

⋆ Legislative privilege should be available to you


Thinking About RecordsThinking About RecordsThinking About RecordsFrom A Litigation Perspective

Thinking About RecordsFrom A Litigation Perspective

ddPresented By:

C. Robert HeathPresented By:

C. Robert HeathBickerstaff Heath Delgado Acosta LLPBickerstaff Heath Delgado Acosta LLP

Date post:	14-Aug-2021
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